Pittwater Council v Scahill
[2009] NSWLEC 12
•27 March 2009
Reported Decision: (2009) 165 LGERA 289
Land and Environment Court
of New South Wales
CITATION: Pittwater Council v Scahill [2009] NSWLEC 12 PARTIES: PROSECUTOR
DEFENDANT
Pittwater Council
Stephen ScahillFILE NUMBER(S): 50053 of 2008 CORAM: Preston CJ KEY ISSUES: PROSECUTION :- cutting down of trees without development consent - sentence - trees part of endangered ecological community - offender an arborist - offence committed in reckless disregard for whether lawful or not - offence committed to earn a fee - subjective circumstances of offender - offender's limited capacity to pay.
Trees: - cutting down of trees without development consent - offence - sentence - trees part of endangered ecological community - offender an arborist - offence committed in reckless disregard for whether lawful or not - offence committed to earn a fee - subjective circumstances of offender - offender's limited capacity to pay.LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 3A, 10, 17, 21A, 22, 23
Environmental Planning and Assessment Act 1979 s 125, 126
Fines Act 1996 s 6
Threatened Species Conservation Act 1995 (NSW)CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Byers v Leichhardt Municipal Council [2006] NSWLEC 82
Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155
Camden Council v Tax [2004] NSWLEC 448; (2004) 137 LGERA 368
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, 82 LGERA 21
Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; (2005) 144 LGERA 235
Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4
Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349
Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719
Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98
Garrett v Freeman (No 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1
Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337
Hoare v The Queen (1989) 167 CLR 348
Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231
Majury v Sunbeam Corp Ltd [1974] 1 NSWLR 659
Manly Council v Taheri [2008] NSWLEC 314
Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89
Power v Penthill House Pty Ltd (1993) 80 LGERA 247
R v Allpass (1993) 72 A Crim R 561
R v Dodd (1991) 57 A Crim R 349
R v Murray (unreported, NSW Court of Criminal Appeal, Barr J and Newman J, 29 October 1997)
R v Nichols (1991) 57 A Crim R 391
R v Peel [1971] 1 NSWLR 247
R v Rushby [1977] 1 NSWLR 594
R v Thomson; R v Houlton [2000] NSWCCA 383; (2000) 49 NSWLR 383
Sutherland Shire Councill v Nustas [2004] NSWLEC 608
Sutherland Shire Council v Turner [2004] NSWLEC 774
Veen v The Queen (1979) 143 CLR 458
Veen v The Queen (No 2) (1988) 164 CLR 465DATES OF HEARING: 5 February 2009
DATE OF JUDGMENT:
27 March 2009LEGAL REPRESENTATIVES: PROSECUTOR
Grahame Jackson (solicitor)
SOLICITORS
Grahame Jackson & AssociatesDEFENDANT
David Legg (solicitor)
SOLICITORS
Burridge & Legg
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESPRESTON CJ
27 MARCH 2009
50053 OF 2008
PITTWATER COUNCIL v STEPHEN SCAHILL
JUDGMENT
1 HIS HONOUR : Pittwater Spotted Gum Forest occurs on the Barrenjoey Peninsula and western Pittwater foreshores. The forest has been extensively cleared and is threatened by further clearing for housing and related infrastructure, and for fire mitigation. Remnants are also threatened by weed invasion and inappropriate fire regimes. The forest exists now in remnants that are typically small and on private property although there are a few remnants in council reserves and one remnant in Ku-ring-gai Chase National Park. As a result of the small size of the remnants, the threat of further clearing and other known threats, the forest has been listed as endangered ecological community under the Threatened Species Conservation Act 1995 (NSW).
2 Two of the characteristic trees of the Pittwater Spotted Gum Forest are spotted gum itself ( Corymbia maculata) and grey ironbark ( Eucalyptus paniculata ).
3 One of the remnants of the Pittwater Spotted Gum Forest occurs on land known as 28 Cabarita Road, Avalon, on the Barrenjoey Peninsula. The land runs to the foreshore of Pittwater. The land is a vacant subdivided lot on which remnant trees and other vegetation of Pittwater Spotted Gum Forest occur.
4 On 12 February 2008, Mr Stephen Scahill, an arborist, cut down two of the trees growing on the land, a spotted gum and a grey ironbark. Mr Scahill’s services as an arborist had been engaged for a fee by a company, Grove Group Pty Limited, engaged on behalf of the owner of the land to carry out a housing development on the land.
5 The cutting down of the two trees was forbidden, without the prior written consent of Pittwater Council, under the Pittwater Tree Preservation and Management Order (“the Tree Preservation Order”) made under the Pittwater Local Environmental Plan 1993. No consent was sought or obtained. The cutting down of the two trees without prior consent constituted an offence against s 125(1) of the Environmental Planning and Assessment Act 1979.
6 Mr Scahill has pleaded guilty to the offence charged. A sentence hearing has been held. The Court’s task is to determine the appropriate penalty for the offence.
7 Section 125(1) of the Environmental Planning and Assessment Act 1979 provides:The offence
“Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act”.
8 Pittwater Local Environmental Plan 1993 was made pursuant to the Environmental Planning and Assessment Act 1979. Clause 41 of the Pittwater Local Environmental Plan 1993 provides:
“A tree preservation order made and in force immediately before the appointed day under any instrument that applied to land to which this plan applies shall be deemed to be a tree preservation and management order made by the council under clause 8 of the Environmental Planning and Assessment Model Provisions 1980 and may be rescinded or varied by the council in accordance with that clause”.
9 Clause 6(1) of the Pittwater Local Environmental Plan 1993 adopted clause 8 of the Environmental Planning and Assessment Model Provisions 1980 , except that clause 8 was modified by clause 6(2)(a1) of the Pittwater Local Environmental Plan 1993 “by omitting from clause 8 the words ‘tree preservation order’ wherever occurring and by inserting instead the words ‘tree preservation and management order’”. Clause 8 of the Environmental Planning and Assessment Model Provisions 1980 provides for the making of a tree preservation order.11 Clause 5 of the Tree Preservation Order provides:10 The Council made a tree preservation order, the Tree Preservation Order, on 21 June 1993. The Tree Preservation Order was, therefore, a deemed tree preservation order under clause 41 of the Pittwater Local Environmental Plan 1993. The Tree Preservation Order was amended on 21 March 1997. This is the form of the Tree Preservation Order that applied at the time of the offence.
“Except as otherwise provided in this Order, a person shall not poison, ringbark, cut down, remove, injure, prune or wilfully destroy any tree, including bushland, except with the consent of Council under this Order and in accordance with any consent and any conditions thereof”.
12 Clause 3 of the Tree Preservation Order states the trees to which the Order applies. These include:
“(a) any tree or shrub, whether endemic, exotic or introduced species, not being a cycad or mangrove which has
(i) a height exceeding three (3) metres, or(iii) a branch canopy with width exceeding five (5) metres …”.(ii) a trunk, bole or branch girth exceeding 0.5 metres or which has a combined girth, each of two or more trunks or boles exceeding 0.5 metres; or
14 Clause 7 of the Tree Preservation Order provides some exemptions. It states in part of clause 7.1 that:
13 The agreed facts are that the grey ironbark ( Eucalyptus paniculata ) had a 250mm diameter stump, which translates to a girth of 785mm, while the spotted gum ( Corymbia maculata) had a 380mm diameter stump, which translates to a girth of 1193mm. Accordingly, both trees were trees to which the Tree Preservation Order applied. I also note that Mr Scahill estimated the height of the spotted gum to be either 4.5 metres or 5 metres and the grey ironbark to be either 3.0 metres or 3.5 metres, at which heights the trees would also be trees to which the Tree Preservation Order applied.
(a) is dead, except in the case of large gums ( Eucalypt, Corymbia and Angophora) that are potential habitat trees …”.
“The owner of the land being private property or any person with the consent in writing of that owner may, without the consent of Council, under this Order, poison, ringbark, cut down, remove, injure, prune or wilfully destroy a tree including bushland where the tree:
15 In this case, neither of the trees were dead. The exemptions were not applicable.16 Clause 6 provides the process for making an application for consent to cut down, amongst other actions, trees to which the Tree Preservation Order applies.
17 No application for consent was made, and no consent was granted, under the Tree Preservation Order to cut down either the grey ironbark or the spotted gum on the land. No other development consent had been granted which otherwise authorised the cutting down of the two trees on the land.
The incident and surrounding circumstances
19 On 12 February 2008, Mr Kural telephoned Mr Scahill and said:18 Grove Group Pty Limited acted as the manager of a proposed development at 28 Cabarita Road, Avalon. Mr Wojciech Kural, known by the nickname of “Tich”, was the director of the company. Mr Kural knew and had previously engaged the services of Mr Scahill as an arborist and landscaper.
“I want you to come and look at a couple of trees on land at Avalon. I think they need to be cut down following recent storms. I need the property to be safe for inspectors and so on”.
20 Mr Scahill says that he arranged with Mr Kural to meet him on site on 12 February 2008. Mr Scahill made an assessment of the health of the trees on 12 February 2008. He orally advised Mr Kural, on site, of his views concerning the health of the two trees. Subsequently, after the Council had investigated the offence, Mr Scahill prepared two reports, the first a one page letter dated 11 March 2008 and the second, a longer report. There was an element of reconstruction and elaboration in those reports which was unlikely to have been communicated by Mr Scahill to Mr Kural on 12 February 2008. Nevertheless, Mr Scahill says that the views concerning the health of the two trees, which he expressed in those reports, were views that he held on 12 February 2008.21 In essence, Mr Scahill’s views were that the grey ironbark (which he incorrectly identified as a swamp mahogany) had decay in the main trunk, crown thinning and die back, and was structurally unsound. Mr Scahill variously estimated the height of this tree, in his subsequent reports, to be either 3 metres or 3.5 metres, with a diameter at breast height of 200mm. Mr Scahill was of the view that the removal of the tree was required.
23 After Mr Scahill advised Mr Kural of his opinion of the health and potential danger of the trees, Mr Kural said:22 Mr Scahill considered that the spotted gum (which Mr Scahill failed to identify other than as a Eucalypt) had sustained storm damage, with a scaffold branch in the crown having been broken off. In addition, branches broken off from neighbouring trees (Eucalypts and Angophoras) were suspended in the crown of the spotted gum. Mr Scahill variously estimated the height of the spotted gum in his later reports to be 4.5 metres or 5 metres. He considered that the storm damage and the suspended broken branches in the crown posed a risk to persons working on the site and he recommended the removal of this tree as well.
“Please chop them down”.
24 Mr Scahill says that he asked Mr Kural if neighbours had been informed and whether they would be in agreement. Mr Kural is said to have replied:
“Everyone’s fine, no need to worry about any of that – we have a DA approval for the site”.
25 Mr Scahill did not, immediately prior to going to the site on 12 February 2008, or at the site, consult the Pittwater Local Environmental Plan 1993 or the Tree Preservation Order. Mr Scahill also did not make any inquiries of the Council regarding the applicability or the terms of any tree preservation order or the circumstances in which approval for removal of the trees might be needed.26 Mr Scahill did not advise Mr Kural that consent to cut down the trees was required or that such consent ought to be obtained before cutting down the trees.
27 Although Mr Scahill stated in his affidavit that he “believed (at this time) that I was within Council guidelines and believed that there was a DA approval for the site to eventually have all trees culled”, Mr Scahill admitted in oral evidence at the sentence hearing that he knew otherwise. Mr Scahill said that Mr Kural and he knew that it would take some time to get Council approval to cut down the trees.
28 Mr Scahill said that, at the time, by reason of personal circumstances, he was suffering financial hardship and that he wanted to get paid work. Mr Scahill said that he knew that if he had insisted upon applying for development consent, he would not be awarded the job to cut down the trees by Mr Kural. He knew that Mr Kural was wanting to have the trees cut down immediately and he feared that Mr Kural would award the job to someone else if Mr Scahill did not agree to do the job immediately.
29 In these circumstances, Mr Scahill agreed to cut down the trees on 12 February 2008 for a fee agreed with Mr Kural.
30 Mr Scahill thereafter cut down the two trees on the day. Mr Kural paid Mr Scahill for the works. Mr Scahill did not disclose the sum he was paid, other than saying it was small in amount.
31 Whist Mr Scahill was cutting down the two trees, one neighbour, Mr Girard of 26 Cabarita Road, Avalon, rang Mr Scott Hancock of the Council and advised him that trees were being cut down at 28 Cabarita Road, Avalon. Mr Hancock drove to the land at approximately 6.00pm on 12 February 2008 and observed men loading a cut section of a large diameter spotted gum tree on to a truck. Mr Hancock observed the stump of the spotted gum tree to be about 10 to 15 metres from the waterfront of the land on Pittwater. Mr Hancock measured the spotted gum stump to be approximately 400mm. Mr Hancock noted that the stump was of a tree that had featured in advertisements for sale of the land a few months earlier. The photograph in the sale advertisement showed a sizeable tree within a view line from the land to the waters of Pittwater. Cutting down of the tree now leaves an unobscured view from that position to Pittwater.
32 On 14 February 2008, another council officer, Mr Andrew Thor, inspected the land. Other neighbours, Mr and Mrs Hancock of 30 Cabarita Road, Avalon, had witnessed the cutting down of the trees and had also complained to the Council. Mr Thor observed that two tree stumps had been freshly cut and a skip bin full of tree branches was awaiting collection on the premises. He observed two stumps on the land. One 250mm diameter stump was a grey ironbark ( Eucalyptus paniculata ) and the other, a 380mm diameter stump, was a spotted gum ( Corymbia maculata) . Mr Thor observed that the branches of both the grey ironbark and the spotted gum in the skip bin appeared to be in good condition.
33 Mr Thor gave evidence identifying the two trees that had been cut down to be a grey ironbark ( Eucalyptus paniculata ) and spotted gum ( Corymbia maculata) , based on the bark of the stumps, the cut trunk sections and the off cuts, and the foliage in the skip bin. Mr Thor also gave evidence that none of the foliage appeared to be suffering from decay or fungal activity.
35 Mr Thor stated that the land comprised part of the habitat of the Pittwater Spotted Gum Forest which is an endangered ecological community listed under the Threatened Species Conservation Act 1995. Mr Thor stated that:34 Mr Thor estimated the spotted gum was approximately 20 to 40 years old and appeared to be self sown while the grey ironbark was 10 to 30 years old and also self sown.
“The effect of the removal of the trees on the habitat at the site is to reduce the canopy cover, a lost ability to grow and re-seed and replenish the Spotted Gum Forest ecological community and create a habitat for the native fauna”.
36 Ms Naomi Stevenson, a ranger for the Council, stated that the Council had not received any application for consent or granted consent to undertake on the land the clearing activities performed by Mr Scahill.The defendant
37 Mr Scahill carries on business as an arborist and landscaper. He has a registered business name of SAS Landscape Services. In his affidavit, Mr Scahill gives his occupation as “arborist”. He states his qualifications to include courses in Horticulture 2 (Charlestown TAFE, NSW, 1999), Horticulture 3 (Kurri TAFE, NSW, 2000), Landscape Design Advanced (Ryde TAFE, NSW, 2003) and stonemasonry skills (Ryde TAFE, NSW, 2004).
39 Mr Scahill says in his affidavit that:38 Mr Scahill says that he has worked in many council areas in the Sydney metropolitan region, although rarely within Pittwater Council area. In oral evidence, Mr Scahill stated that the only sure way to know what are the requirements in a particular local government area is to consult the tree preservation order applying in that area.
“The main focus of my business is landscaping, and I specialise in the use of native plants in the landscaping. My work as an arborist is secondary. As an arborist I am often asked to remove trees for many improper reasons, such as interference with a view, and, with the exception of the incident charged, it has always been my policy to refuse. I am a lover of natives and have planted thousands of natives”.
40 Mr Scahill says that ordinarily he would always have checked the tree preservation order and obtained approval. He says that this occasion was an exception.41 Section 3A of the Crimes (Sentencing Procedure) Act 1999 provides that the purposes of imposing a sentence on an offender include:Purposes of sentencing
“(a) to ensure that the offender is adequately punished for the offence,(b) to prevent crime by deterring the offender and other persons from committing similar offences,
...
(e) to make the offender accountable for his or her actions,
(g) to recognise the harm done to the victim of the crime and the community”.(f) to denounce the conduct of the offender,
42 The sentence of the Court is a public denunciation of the conduct of the offender. The sentence must ensure that the offender is held accountable for his or her actions and is adequately punished or given his or her just deserts.
43 The sentence must deter the offender from committing similar crimes in the future. This is important for an offender such as the defendant who is in business as an arborist and landscaper and accordingly will be called upon in his business to prune, cut down or remove trees and vegetation that might be protected by tree preservation orders, environmental planning instruments or development consents. The sentence of the Court needs to deter the defendant from taking such action other than in accordance with lawful authority.
44 Most importantly, the sentence of the Court needs to operate as a powerful factor in preventing the commission of similar crimes by persons who might be tempted to do so by the prospect that, if they are caught, only light punishment will be imposed: R v Rushby [1977] 1 NSWLR 594 at 597. This is particularly so in the context of unlawful development, having regard to the policy considerations articulated in a number of cases including Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [32]-[35]; Sutherland Shire Council v Turner [2004] NSWLEC 774 at [24]; and Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; (2005) 144 LGERA 235 at [32]-[34].
45 For environmental offences, the purpose of sentencing of general deterrence is of central importance. Many of the cases in which courts have so stated are set out in the judgment in Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [59], [71]-[80] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [103]-[106]. Persons will not be deterred from committing environmental offences by nominal fines: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 354; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [139]-[142], [150], [151] and Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 at [17].
46 There is a need for the upholding of the integrity of the system of planning and development control. This system depends on persons taking steps to obey the law by ascertaining when development consent is required and then obtaining development consent before carrying out development: Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 at [60]-[61]; Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [72]-[80]; Byers v Leichhardt Municipal Council [2006] NSWLEC 82 at [83], [85]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [104]; and Garrett v Freeman (No. 5) ; Garrett v Port Macquarie Hastings Council ; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1 at [58]. Development must be carried out in accordance with the terms of the development consent obtained: Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [105].
47 The sentencing purpose of general deterrence is particularly relevant where the offender is in a business or industry that undertakes development or action that is regulated by the system of planning and development control. Persons and corporations engaged in demolition, excavation, and building and development work need to be warned by the sentence imposed by courts in cases involving unlawful demolition, excavation, and building and development work that all necessary consents must be obtained and complied with: Mosman Municipal Council v Menai Excavations Pty Ltd at [2002] NSWLEC 132; (2002) 122 LGERA 89 at [31], [32], [35]; Sutherland Shire Council v Nustas [2004] NSWLEC 608 at [18]; Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155 at [62]; Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 at [68(e)].
48 So too, persons and corporations involved in arboricultural and landscaping businesses and industries have to be aware of the obligation to ascertain the laws and the controls applicable to trees and vegetation on land proposed to be developed, including whether consent is required to prune, cut down, remove or interfere in any way with trees and vegetation; to obtain any necessary consent; and to undertake work in relation to trees and vegetation in accordance with the applicable laws, controls and consents. The sentence of courts for an offence against the laws protecting trees and vegetation needs to send a clear message that failure to take such steps to comply with the laws will be visited with significant financial consequences.Approach to sentencing
49 A basic principle of sentencing law is that the sentence imposed by the Court for each offence must reflect and be proportionate to both the objective circumstances of the offence and the personal or subjective circumstances of the defendant: Veen v The Queen (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) (1988) 164 CLR 465 at 472.
Objective gravity of the offences
51 In determining the objective gravity or seriousness of the offences, the circumstances of the offences in this case to which the Court may have regard include:50 The primary factor to consider is the objective gravity or seriousness of each offence. The objective gravity or seriousness of the crimes fixes both the upper and lower limits of proportionate punishment. It fixes the upper limit because a sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in light of its objective circumstances: Veen v The Queen (No 2) (1988) 164 CLR 465 at 472, 485-486, 490-491, 496; Hoare v The Queen (1989) 167 CLR 348 at 354. It fixes the lower limit because allowance for the subjective factors of the case, particularly of the offender, cannot produce a sentence which fails to reflect the objective gravity or seriousness of the offence: R v Dodd (1991) 57 A Crim R 349 at 354; R v Nichols (1991) 57 A Crim R 391 at 395; R v Allpass (1993) 72 A Crim R 561 at 563; R v Murray (unreported, NSW Court of Criminal Appeal, 29 October 1997) at 6-7 per Barr J with whom Newman J agreed. See also Garrett v Freeman (No 5) [2009] NSWLEC 1 at [51].
(a) the maximum penalty for the offences;
(b) the objective harmfulness of the offender’s actions;
(c) the offender’s state of mind in committing the offences;
(d) the offender’s reasons for committing the offences;
(e) the foreseeability of risk of harm to the environment;
(f) the practical measures to avoid harm to the environment; and
(g) the offender’s control over the causes of harm to the environment.52 The maximum statutory penalty is of great relevance in determining the objective gravity of the offence. As was stated in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698, 82 LGERA 21 at 36:
Maximum penalty
“The maximum penalty available for an offence reflects the ‘public expression’ by parliament of the seriousness of the offence”.
53 A fundamental consideration, of particular relevance to environmental offences, is the degree by which, having regard to the maximum penalties provided by the statutes in question, the offender's conduct would offend against the legislative objective expressed in the statutory offence: R v Peel [1971] 1 NSWLR 247 at 262.55 As was noted by McClellan J in Camden Council v Tax [2004] NSWLEC 448; (2004) 137 LGERA 368 at [28] and [29]:54 The legislative objective expressed in s 125 of the Environmental Planning and Assessment Act 1979 is that persons should obey the statutory scheme of not carrying out development or action that is forbidden without first applying for and obtaining any necessary development consent. This includes undertaking any required environmental impact assessment as part of the process of applying for the necessary consent.
[29] Accordingly, in imposing a penalty in this particular case, it is most important to ensure that that penalty sends a message to the general community that before any activity is taken which may cause the demise of any tree development consent must be obtained from the local council. Unless that message is sent and received by the community, there will be difficulties in ensuring that the objective of carefully considering the necessity to retain vegetation in many areas, but particularly rural areas, is achieved”.
“[28] The necessity for the protection of vegetation in the community is now accepted in virtually every area of the state. Special legislation has been provided in relation to rare species and ecological communities but beyond that legislation, as the Local Environmental Plan in this case illustrates, steps have been taken to ensure that in areas where development may be appropriate, decisions with respect to the grant of development consent are taken after regard is had to the value and significance of the vegetation on any parcel of land. As this Local Environmental Plan makes plain, that protection has been extended even to land which is otherwise identified as suitable for rural or rural-related uses.57 Section 126(1) of the Environmental Planning and Assessment Act 1979 provides that the maximum penalty for a person guilty of an offence against the Act is 10,000 penalty units and a further maximum daily penalty of 1,000 penalty units. Since a penalty unit is $110 (s 17 of the Crimes (Sentencing Procedure) Act 1999), the maximum penalty is a fine of $1,100,000 and a daily pecuniary penalty of $11,000. In addition, s 126(3) provides:
56 The defendant’s failure to apply for and to obtain development consent prior to cutting down the trees undermined this legislative objective. The process of making an application would have enabled a careful evaluation of the trees; their value, including their ecological and amenity value in the landscape; their health; and any potential risk posed by them to life or property. In so far as the health of the trees were to be put in question, less intrusive measures, such as sensitive pruning of damaged branches, careful removal of broken branches suspended in the canopy and ongoing management of the health of the trees, could have been considered as alternatives to the cutting down and removal of the trees. The precipitous action of the defendant in cutting down the trees denied the opportunity to evaluate the trees and the alternatives.
“(3) Where a person is guilty of an offence involving the destruction of or damage to a tree or vegetation, the court dealing with the offence may, in addition to or in substitution for any pecuniary penalty imposed or liable to be imposed, direct that person:
(b) to provide security for the performance of any obligation imposed under paragraph (a)”.
(a) to plant new trees and vegetation and maintain those trees and vegetation to a mature growth, and58 The objective harmfulness of the appellant's actions is relevant to determining the seriousness of the offences. In Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 701, Kirby P stated that:
Objective harmfulness of offence
“In environmental matters the Court has previously exercised its discretion in relation to penalty on the principle that the more serious the lasting environmental harm involved the more serious the offence and, ordinarily, the higher the penalty”.60 Mr Thor’s evidence was that:
59 The two trees in question were of an indigenous species. They were both characteristic trees of the Pittwater Spotted Gum Forest, an endangered ecological community. That community occurred on the land. The community was listed as an endangered ecological community because it was likely to become extinct in nature in NSW unless the circumstances and factors threatening its survival or evolutionary development ceased to operate. These circumstances and factors include that the community has been extensively cleared and now exists in remnants and is threatened by further clearing for housing and related infrastructure, and for fire mitigation. The vegetation on the land is part of one of these remnants of the community. The cutting down of two trees in that remnant for housing and related infrastructure falls into one of the categories of processes threatening the survival of the community.
“The effect of the removal of the trees on the habitat on the site is to reduce the canopy cover, a lost ability to grow and re-seed and replenish the Spotted Gum Forest ecological community and create a habitat for the native fauna”.
61 One of the habitat values noted for spotted gums is that they are a valuable winter food source, providing nectar when flowering between May and September, which is favoured by honeyeaters, lorikeets, possums and gliders. Spotted gums also develop hollows, which provide nesting habitat for arboreal fauna. One of the trees cut down was a spotted gum.62 The ages of the trees were estimated by Mr Thor to be 20-40 years for the spotted gum and 10-30 years for the grey ironbark. It was an agreed fact that it will take decades for replanted trees to grow to the height of those trees that were cut down.
63 The Council accepted, however, that if the action of cutting down the two trees were to be evaluated using the seven part test in s 94(3) of the Threatened Species Conservation Act 1995 (which is used to evaluate whether any proposed action is likely to significantly affect a threatened species, population or ecological community), the impact of the action under that test could be classified as minimal.
64 The evidence in relation to the trees’ health is equivocal. Mr Scahill’s view was that each tree had been compromised in some way through decay or storm damage and removal was justifiable. Mr Thor’s evidence was that, based on his observations of the off cuts and leaves in the skip bin, there was no sign of decay or fungal attack and the foliage looked green and healthy. I am prepared to find that Mr Scahill was of the view that the trees’ health had been compromised for different reasons and that this provided justification for his recommendation for removal of the trees.
66 The trees were also located on foreshore land. The land abuts the shores of Pittwater and is part of its scenic landscape catchment. The trees contributed to the amenity of the area. The Tree Preservation Order is stated to be for the purpose of securing amenity and preserving existing amenity. As I noted in Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [59]:65 However, the evidence does not establish that consent to remove the trees would have been granted by the Council if application had been made, or that such a decision was the only decision reasonably open to the Council. Mr Scahill’s views on the health of the trees may have been contestable and, furthermore, even if the trees had been compromised to some extent, the evidence does not establish that the cutting down of the trees would have been the only reasonable option to address any risk to life or property, rather than less intrusive measures such as pruning damaged or dead branches, removal of suspended broken branches and ongoing management of the trees’ health.
“Bushland in and around urban areas is of value to the community as part of the natural heritage, for its aesthetic value, and its value as a recreational, educational and scientific resource. Where that bushland meets or is in proximity to waterways, the bushland has added value. Planning has long controlled the carrying out of development in the foreshore zone: see for example Willoughby City Council v Bowen (1996) 92 LGERA 410 and Bowen v Willoughby City Council [2001] NSWLEC 274 (4 December 2001).”
See also Manly Council v Taheri [2008] NSWLEC 314 at [54].67 The environmental harm caused by the cutting down of the two trees may be mitigated to some extent over time by reason of the owner of the land having entered into a deed with the Council to plant new trees on the land and to maintain those trees for a period of time by way of reparation and restoration of the harm.
68 Having regard to the above matters, I find the commission of the offence caused actual environmental harm of medium seriousness. Such harm can be considered substantial and an aggravating factor to be taken into account in determining an appropriate sentence: see s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
State of mind of the offender
69 The offences against s 125(1) of the Environmental Planning and Assessment Act 1979 committed by the appellant are strict liability offences and hence mens rea is not an element of the offence: Power v Penthill House Pty Ltd (1993) 80 LGERA 247 at 253. Nevertheless, the state of mind of an offender at the time of the offence can have the effect of increasing the seriousness of the crime. A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one not so committed: Majury v Sunbeam Corp Ltd [1974] 1 NSWLR 659 at 664; Camilleri'sStock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 700; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [123]; Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337 at [53]; and Garrett v Freeman (No 5) [2009] NSWLEC 1 at [68], [356].
70 Notwithstanding Mr Scahill saying that he was of the belief that he did not need to obtain approval to cut down the two trees, I find that in fact Mr Scahill realised or suspected that cutting down the trees without obtaining the prior consent of the Council could be unlawful but he nevertheless deliberately chose to do so without checking whether such conduct was unlawful or not. I make this finding for three sets of reasons.
71 First, I do not accept that Mr Scahill formed the positive belief that he did not need approval to cut down the trees. Mr Scahill said that he made an assumption that the Tree Preservation Order would have allowed the removal of the trees without consent because, in his opinion, there was damage to the trees and a likelihood that other branches might fall. Mr Scahill said that he made that assumption because of previous work he had done in the Ku-ring-gai local government area where he had cut down trees which he considered dangerous after taking photographs of the trees and then, subsequently, faxed those photographs and a report on the trees to Ku-ring-gai Council. Mr Scahill said that he assumed that he could do the same with Pittwater Council.
72 I do not accept that Mr Scahill made such an assumption for three reasons. The first reason is that Mr Scahill said in oral evidence that he knew that tree preservation orders varied from council to council and, hence, that the practice in one council area might not be the practice in another council area. Such knowledge is commonplace for a person working in the arboricultural and landscaping industries. The logical consequence of such knowledge is that the terms of the tree preservation order and the practice in Ku-ring-gai local government area might not be the same as the terms of the tree preservation order and practice in Pittwater local government area.
73 The second reason is that if Mr Scahill were to have made such an assumption, he would be expected to follow what he said was his practice in Ku-ring-gai. Yet, in this case, Mr Scahill did not follow what he said was his practice in Ku-ring-gai. Mr Scahill said he took photographs of the trees in question using his mobile phone but that three weeks later his mobile phone was damaged by moisture and he could not download the photographs. However, Mr Scahill did not state that he ever intended in this case to prepare a contemporaneous report on the trees and their removal or to send the photographs he had taken and a report on the trees to Pittwater Council advising of the work of cutting down the trees. The only reason Mr Scahill prepared the letter of 11 March 2008 and the subsequent report on the trees was in response to a request by Mr Kural, who was under investigation by the Council for the illegal cutting down of the trees. Mr Scahill did not, of his own initiative and before being asked by Mr Kural after an investigation of the illegal work had commenced, advise Pittwater Council that he had cut down the trees.
74 The third reason is that Mr Scahill said that, in fact, he had read the Tree Preservation Order of Pittwater Council at some time earlier than 12 February 2008 when he cut down the trees. Mr Scahill accepted that his understanding was that the Tree Preservation Order required approval for removal of all trees of a certain size and that there were no exemptions for trees in a dangerous condition. Such an understanding is at odds with his alleged assumption that the terms of the Tree Preservation Order were the same as those in Ku-ring-gai. It is implausible that Mr Scahill would have formed a contrary assumption as to the terms of the Tree Preservation Order on 12 February 2008. Mr Scahill was unable to point to any terms of the Tree Preservation Order, which would found a contrary assumption.
76 These explanations are summarised in this exchange in oral evidence.75 Secondly, Mr Scahill, in oral evidence, conceded that he would, under normal circumstances, have insisted upon confirmation of council approval to cut down the trees, but Mr Scahill said he did not do so on this occasion. Mr Scahill said that ordinarily he would say to a client who asks for a tree to be removed, that approval needs to be obtained from the relevant council to remove the tree. Mr Scahill’s explanation for failing to follow his ordinary practice was threefold: first, time pressures to remove the trees before workmen came on to the site – applying to the Council for an approval would delay the process; second, financial pressures on Mr Scahill – he was in financial difficulty and wanted to earn the fees for the work of cutting down the trees but feared that if he insisted on obtaining Council approval, he may not have been awarded the work; and third, Mr Scahill was suffering from depression.
A. Probably because I was, we were in, I was under a fair bit of pressure, quite a lot of pressure and I under normal circumstances would not have done that. I would have insisted upon confirmation from the council but I did not.
“Q. Why didn’t you at that point say “We need to get council approval specifically for these trees”?
LEGG
A. He was just saying to me “It’s fine, it’s fine” and “Let’s go ahead and do it” and it was a time thing as well, a time factor as well, we’ve got to get it sorted because we’ve got guys coming onto the site to go ahead with some works. So basically he was just saying “Let’s get it over and done with” and ordinarily I would just go “Look, we’ve got to sort this out” ordinarily but I didn’t. That was basically it. He was just very insistent that we get it done as quickly as possible basically.Q. You say that Mr Kural was very insistent?
A. Yes, that’s--
Q. Can you tell us what he said and what he did that made you perceive that?
HIS HONOUR
Q. But did you ever say to him look you’ve got to get an approval, most times you’ve got to get an approval to remove a tree, I’d better check with Pittwater Council?
A. No I did not your Honour; I fully admit that that was a mistake. Ordinarily I would.Q. Well what’s different about this case? You say ordinarily you would. What’s different about this case to what you ordinarily would do because I can’t see anything different in this case so far to what must be your bread and butter as an arborist?
A. I suppose it’s just the fact that I wasn’t thinking clearly, I didn’t - I wanted to sort of get the job done quickly and I didn’t--
Q. But why, what is it about this job that you wanted to do it as opposed to any other job?
A. I suppose your Honour sometimes if I - if I take - I wasn’t in a good headspace if you can permit me to say that and I - financially things are tight so things - if you go through the channels, the normal channels in council often takes - it can take a lot of time and both Mr Kural and I were aware of that and just went ahead without permits.
A. I think we spoke, I can’t remember exactly what we spoke about but it was something akin to yes let’s assess it now and get it done straight away. I can’t recall whether I thought that if we went through the same channels I wouldn’t have the work. Sometimes if work comes up you do tend to like to not miss out on the work and I was in serious financial strain and so forth and I wasn’t thinking clearly and it was clearly the wrong thing to do. Ordinarily I, you know, I should say your Honour that I absolutely agree with you on the fact that it doesn’t on face value seem to be any different but I can tell you quite honestly that it was, the way I was thinking wasn’t what I would normally - if that explains it at all”.Q. Was there a discussion about that? You say both Mr Kural and you were aware of that. How do you know that he was aware of that?
77 These explanations, whilst providing insight into the reasons for Mr Scahill’s conduct, do not provide support for the alleged belief that approval was not required. To the contrary, they provide evidence that Mr Scahill was of the belief that approval was likely required but to obtain it would delay the development for Mr Kural and risk Mr Scahill missing out on the work and the fee he wanted to earn.78 Thirdly, Mr Scahill’s questions of Mr Kural as to whether the neighbours had been informed of the proposed action of cutting down the trees and whether they would be in agreement, are consistent with Mr Scahill being concerned that the cutting down of the trees would arouse complaints from the neighbours to the Council. The neighbours could only justifiably complain if prior Council approval to cut down the trees had not been obtained. Mr Scahill’s questions reveal a concern of Mr Scahill that the cutting down of the trees might be illegal without the prior approval of the Council. Mr Kural’s response to Mr Scahill’s questions confirms this. Mr Kural sought to assuage Mr Scahill’s concerns by saying “we have a DA approval for the site”. Mr Scahill does not ask any further questions about the “DA approval” and, in particular, whether it authorised the cutting down of the two trees in question, or ask to see a copy of the approval to check for himself whether it authorised the cutting down of the trees.
79 In these circumstances, Mr Scahill chose to cut down the two trees in reckless disregard for whether his conduct was lawful or not. This state of mind is an aggravating circumstance of the conduct constituting the offence.
Offender’s reasons for committing the offence
80 The criminality involved in the commission of an offence is to be measured not only by the seriousness of what actually occurred, but also by reference to the reasons of its occurrence: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 366; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [237]; Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [140] and Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [120].
81 The carrying out of an offence to make a profit, or to save incurring an expense, or to avoid the cost of obtaining and implementing a statutory permission such as a development consent or environment protection licence increases the seriousness of the crime. Offenders should not profit from crime: Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115 at [121] and cases therein stated.
82 In this case, the defendant was not the owner of the land and would not yield a benefit from the crime, such as was the case in Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [70] where the cutting down of the tree improved the view and the value of the land for sale. The defendant was also not the developer of the land who would derive benefit from the removal of an impediment to development of the land, such as was the case with the removal of vegetation in Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [141]; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [238], [246]-[247] and Director- General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4 at [78]. Nevertheless, the defendant was in business as an arborist and landscaper and he sought to, and did in fact, earn a fee for carrying out the business service of cutting down the two trees. The defendant earned that fee by committing the offence.
83 Mr Scahill gave as reason for his conduct that he was suffering financial hardship at the time and he needed to work so as to earn the fees to alleviate his financial problems. He feared that if he insisted on Mr Kural applying for and obtaining development consent to cut down the trees, Mr Kural would engage someone else to undertake the work and Mr Scahill would not earn the fee. Mr Scahill therefore chose to undertake the work immediately, without requiring that prior consent be sought and obtained, in order to secure the work and the fee.
84 Such a reason for committing the offence is not a reasonable excuse. The fact that a principal to a potential agreement for the performance of work refuses to take action to avoid breaching the law does not exculpate a contractor from his obligation to comply with the law. If the principal will not agree to comply with the law by obtaining the requisite consent, the contractor is obliged to refuse to enter into the agreement and refuse to perform the work: see Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719 at [139]-[142].
85 In this case, therefore, the fact that Mr Scahill perceived that Mr Kural was insisting that the trees should be cut down immediately and without obtaining the necessary development consent did not excuse Mr Scahill from his obligation not to cut down the trees without first obtaining development consent.
Foreseeability of risk of harm
86 Mr Scahill could reasonably have foreseen that the cutting down of the two trees would cause harm to the environment. Mr Scahill was a professional arborist and landscaper. He states in his affidavit that he specialises in the use of native plants in landscaping. He states that he is a lover of natives and has planted thousands of natives. He would have been aware of the risk that the cutting down of the trees would cause harm to the environment.
Practical measures
87 Mr Scahill could have and should have refrained from cutting down the two trees unless and until development consent had been obtained from the Council authorising the cutting down of the trees.
Control over causes
88 Mr Scahill cut down the trees and thereby had control over the causes of the harm to the environment.
Conclusion on objective circumstances
89 Having regard to the actual environmental harm caused by the cutting down of the two trees that had ecological value, and were part of the endangered ecological community of Pittwater Spotted Gum Forest; Mr Scahill being an arborist who was in the business of pruning, cutting down and removal of trees; Mr Scahill’s conduct in cutting down the trees in reckless disregard of whether such conduct was lawful or not; Mr Scahill undertaking the conduct constituting the offence to earn a fee; the foreseeability of risk of harm by reason of the commission of the offence; the existence of practical measures to avoid that risk of harm; Mr Scahill’s control over the causes of the harm to the environment, the offence should be considered to be of low to medium objective gravity.
Subjective circumstances of the defendant
90 Within the limits set by reference to the objective gravity of the offence, the Court may take into account the favourable factors personal to the offender.
Lack of prior criminality
91 Mr Scahill does not have any prior convictions for any environmental offences: see s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999.
Prior good character
92 There is evidence that Mr Scahill has otherwise been of good character: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. Three character references were tendered: one by Mr Paul Castley, a barrister who has been a friend of Mr Scahill since studying with him in secondary school; a second by Mr Wayne Familo, an architect, who has relied on Mr Scahill's professional advice to advise his clients on landscaping and arboriculture matters; and a third by Mr Jonathan McKenzie, a director of a property development company that has engaged Mr Scahill for numerous landscape and tree management projects. Each of the persons stated that the commission of the offence was out of character. The two persons who had used Mr Scahill professionally spoke about the fact that Mr Scahill always had advised clients to make the relevant applications to councils and had refused to undertake work unless the appropriate approvals had been received. They indicated that, notwithstanding the commission of this offence, they would be willing to continue to use Mr Scahill’s services, having regard to his commendable attributes and professional ability.
Plea of guilty
93 Mr Scahill has pleaded guilty to the offence: s 21A(3)(k) and s 22 of the Crimes (Sentencing Procedure) Act 1999. Although there were difficulties and delay in the defendant coming before the Court, once the defendant was legally represented, a plea of guilty was entered at the first opportunity. The Council does not contest that the Court should afford a discount of 25% for the utility value to the criminal justice system of Mr Scahill’s plea of guilty: R v Thomson; R v Houlton [2000] NSWCCA 383; (2000) 49 NSWLR 383 at [160].
94 Mr Scahill has given evidence expressing his contrition and remorse for committing the offence. He stated in his affidavit:Contrition and remorse
“I apologise to the Court for my behaviour which was foolish and wrong. I have learnt a very valuable lesson from this prosecution and will always be scrupulous about obtaining details of tree preservation orders before I remove any tree in the future”.
95 His oral evidence at the sentence hearing was to like effect. Mr Scahill has accepted responsibility for his actions and acknowledges the harm caused by his actions: see s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999.96 I find that Mr Scahill is contrite and remorseful for his conduct. This makes it less likely that he will re-offend in the future: s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999.
Assistance to authority
97 Mr Scahill did offer to the Council, through his solicitor, to co-operate in giving evidence in any prosecution the Council might bring against Mr Kural or Grove Group Pty Ltd who was the manager of the proposed development on the land. It would seem that such a prosecution has not been brought and hence the offer of assistance has not been called upon. Nevertheless, the undertaking to assist the Council is noted: s 21A(3)(m) and s 23 of the Crimes (Sentencing Procedure) Act 1999.
Payment of prosecutor’s costs
98 Mr Scahill has agreed to pay the Council’s costs of the proceedings, as agreed or assessed. The Council’s estimate is $13,216.14.
Capacity to pay fines
99 Mr Scahill states in his affidavit that his financial circumstances at present are limited. He states that he has recently married and his wife is not currently employed. He is the sole operator of his own landscape business, SAS Landscape Services. That business is Mr Scahill and his wife’s only source of income. It operates at a small profit. However, Mr Scahill says that he is having difficulty meeting living expenses after paying rent and bills. Mr Scahill has stated that his revenue from the business is around $66,000, however, the expenses of the business, food and living expenses and rent exceed that yearly revenue. He estimates the expenses are $87,140. There was no evidence as to Mr Scahill’s assets or liabilities, either of the business or personally.
100 Mr Scahill submits that his limited financial capacity to pay, together with the fact that he will be ordered to pay the Council’s costs of the proceedings, should be taken into account in fixing the amount of any fine: see s 6 of the Fines Act 1996.
101 The solicitor for Mr Scahill submitted that the Court should consider making an order under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, which provides that:Section 10 of Crimes (Sentencing Procedure) Act 1999
“(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:
…
(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years …”103 The exercise of the Court’s discretion to make an order under s 10(1), and in particular s 10(1)(b), is qualified by subsections (2) and (3). Subsection (2) provides that:
102 Mr Scahill’s solicitor submits that such an order would be appropriate having regard to the particular subjective circumstances of the offender in this case.
“(2) An order referred to in subsection (1)(b) may be made if the court is satisfied:
(b) that it is expedient to release the person on a good behaviour bond”.
(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or
104 Subsection (3) requires the Court to have regard to a number of factors:
“(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:
(a) the person’s character, antecedents, age, health and mental condition,(b) the trivial nature of the offence,
(d) any other matter that the court thinks proper to consider”.(c) the extenuating circumstances in which the offence was committed,
105 In relation to the factors in s 10(3)(a), Mr Scahill has no prior criminal record, he is of prior good character and he was suffering at the time of the commission of the offence from clinical depression. These are all factors in favour of making an order under s 10(1).106 In relation to s 10(3)(b), the offence cannot be characterised as trivial. The objective circumstances of the offence, set out above, make it of low to medium objective seriousness. In particular, the objective harmfulness of the offence, the fact that Mr Scahill is a professional arborist, the state of mind with which Mr Scahill committed the offence and his reasons for doing so, elevate the gravity of the offence and deny the categorisation of the offence as trivial.
107 In relation to s 10(3)(c), the fact that Mr Scahill perceived himself to be under pressure from Mr Kural to carry out the work immediately, and without the delay that would be occasioned by applying for and obtaining development consent, and the fact that Mr Scahill’s parlous financial circumstances made Mr Scahill desirous of obtaining work to earn a fee, are not extenuating circumstances. The only possible circumstance could be the fact that Mr Scahill was suffering from depression at the time. Nevertheless, to cut down the trees without confirming council approval was contrary to his ordinary professional practice and was in reckless disregard for whether it was unlawful or not.
108 In relation to s 10(3)(d), there are other mitigating factors, considered above in the section on subjective circumstances of the offender, such as the plea of guilty, contrition and remorse, an offer of assistance and an agreement to pay the Council’s costs of the proceedings.
109 I do not consider the circumstances of this offence and of this offender to warrant making an order under s 10(1). In particular, the objective gravity of the offence makes the exercise of such a discretion inappropriate. Having regard to the purposes of sentencing, there is a need to impose a conviction and a penalty which is a public denouncement of the conduct of the defendant and which acts to prevent future crime by deterring other persons involved in the arboriculture and landscaping industries from cutting down or removal of trees and other vegetation without first obtaining and then complying with all the necessary approvals. Whilst I accept that the defendant may be unlikely to re-offend, nevertheless, a conviction and a penalty holds him accountable for his conduct and reinforces the obligation on him: Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 at [35].
110 In the circumstances, I find it is expedient to inflict punishment, other than nominal punishment, on Mr Scahill.
Appropriate penalty
111 It is appropriate in the circumstances of this case to convict Mr Scahill of the offence charged and to impose a fine.
112 I take into account the objective circumstances of the offence, as mitigated by the subjective circumstances of Mr Scahill. I allow a discount of 25% for the utilitarian value of the plea of guilty. I take particular regard of Mr Scahill’s limited financial capacity to pay a fine as required under s 6 of the Fines Act 1996. As a consequence, the penalty which I will impose is considerably less than otherwise would be the case. Synthesising these factors, I consider that an appropriate amount for the fine should be $11,000.
113 In addition, Mr Scahill should be ordered to pay the Council’s costs of the proceedings. The Council has indicated that its costs of the proceedings are $13,216.14. However, Mr Scahill’s solicitor says that he has not had the opportunity of assessing those costs to determine their reasonableness. In the circumstances, Mr Scahill’s solicitor requests that the Court order that Mr Scahill pay the Council’s legal costs of the proceedings as agreed or assessed. I consider this an appropriate order.
114 Accordingly the Court orders:
1. The defendant is convicted of the offence as charged.
2. The defendant is fined the sum of $11,000.
3. The defendant is to pay the prosecutor’s costs of the proceedings, as agreed or assessed.
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